Here’s a phrase I never thought I’d write: TikTok helped me become a better lawyer. It’s true, and not because there is a ton of critical legal thought about the app or because #AttorneyTok has some kind of content of meaningful substance. However, the platform has over a billion users worldwide and many of them (like me) are employees. And what do a billion people sign up on TikTok to talk about? The answer, for better or for worse, is everything– but above all their jobs. It is therefore not surprising that much of the content posted on this limitless social media app is in line with the latest trends in labor litigation. According to data from the latest filings, remote working-related discrimination lawsuits are on the rise and employers should remain vigilant about ADA compliance to avoid becoming the next defendant.
Given the surge in claims against employers, a recent influx of TikTok videos about return to work plans and flexible arrangements for working remotely caught my attention. One clip stands out in particular: The user sits at his desk at home, where he works remotely and demonstrates with a device that was specially developed for the fact that his computer mouse is in constant motion even when leaving. This, he explains, so that he is not tagged by the software installed on his computer that tracks his keystrokes and mouse clicks, which his employer uses to check whether he is working or not. I repeat a refrain that is known to all employers, HR professionals and labor lawyers alike: Miracles never stop. In fact, my Ice Miller colleague Kayla Ernst wrote extensively earlier this year on the legal implications of employee monitoring and has excellent recommendations for employers currently in or considering some form of monitoring.
Make me work from home or I’ll sue you
The emergence of innovative devices designed to thwart surveillance software should perhaps be the least of any concern for an employer as we continue to grapple with what it means to get back to work after an 18 month pandemic. Prior to the pandemic and the resulting shift in our employment landscape, courts were generally reluctant to view remote working as a reasonable accommodation, as doing the job is often an essential function. Now, a recent surge in the number of discrimination allegations and lawsuits filed against employers in connection with or lack of remote working agreements shows that our “new normal” is facing new challenges under the Americans with Disabilities Act (as well as the Rehabilitation Act, which it beneficiaries of federal financial aid prohibits discriminating against qualified persons with disabilities in the workplace). Some recent examples illustrate the types of claims that are made against employers related to remote work:
- In Georgia, a university professor filed a discrimination lawsuit with the Equal Employment Opportunity Commission (a precursor to a federal lawsuit) claiming the university ignored her disability when she was forced to resume personal work on the university campus. The professor, who wears a pacemaker and is not eligible to receive the COVID-19 vaccine, further claimed her employer advised her to deny all ADA accommodation for COVID-19-related disabilities.
- In a lawsuit filed in federal court in Wisconsin, the plaintiff, a human resources worker with gestational diabetes, alleged that her employer denied her remote work request despite her high risk of developing COVID-19. The claims contained in the lawsuit include interference with the rights of the employee under the Family Medical Leave Act and willful discrimination and omission under both the ADA and Title VII.
- Earlier this year, a Florida social worker filed a lawsuit against her employer, a public school district, when the employer denied her application to work from home. The plaintiff alleged that prior to the COVID-19 pandemic, her mental health deteriorated during quarantine to such an extent that she needed reasonable precautions to perform the essential functions of her position. Specifically, the plaintiff argued that her employer failed to participate in the required interactive process when he rejected her application to work from home and ended the dialogue there.
So stay ahead
Hundreds of similar lawsuits related to remote working were filed against employers in the past year. So what should employers take away from this surge in litigation? It’s simple: we might live in a new world, but our constant friend – the Americans with Disabilities Act – stays the same. Here are a few ADA basics and practical tips employers should consider when targeting workers with COVID-19-related disabilities and / or remote work requests as reasonable accommodation:
- If the worker is a qualified person with disability, employers need to make reasonable accommodation and have an interactive dialogue to discuss possible accommodation – including the potential of remote working.
- The ADA does not require that an employer offer their employees a remote work program, but if a remote work program is offered, workers with disabilities must be given an equal opportunity to participate.
- Allowing a worker to work from home can be a reasonable accommodation even if the employer does not have a remote work program, as a change in the place where the work is done may be covered by the ADA’s requirement to change workplace policies .
- If an employer chooses to provide accommodation that goes beyond the requirements of the ADA, it should do so in a non-discriminatory manner. For example, employers who do more for workers with physical disabilities must do the same for workers with intellectual disabilities.
- The provision of remote working arrangements during the height of the pandemic does not mean that remote working under the ADA is necessarily a reasonable provision for all future positions.
Be sure to:
- Make sure the job descriptions are correct and up to date. The determination and documentation of the essential functions of each position, such as For example, personal work performance for certain roles is crucial in determining whether a particular person can perform these essential functions in the event that problems arise.
- Make sense of the potential of requested remote work accommodation, as long as it does not pose undue hardship for the employer.
- Proactively participate in the interactive process by offering alternative effective accommodations when remote work would be an undue hardship.
- Consult a legal counsel with any questions about remote working and the ADA.